20181030 TZCA Dar es Salaam

INTHE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM , (CORAM: MBAROUKI J.A., LILA, 3.A., AND MWAMBEGELE, LA.) CIVIL APPEAL NO.60 OF 2011 ..................................................... APPELLIkNT i VERSUS IMMANUEL].MARAGA (Legal Representative of JOSEPH MALAGA) .................. RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Dar es Salaam) (Makaramba, 1.) H datedthe2othdayofiufle,2008 in I , Miscellaneous Civil Application No. 200 of 2005 JUDGMENT OF THE COURT 10 111 October & 15th November, 2018 MWAMBEGELE, J.A.: H The genesis of the present appeal is the suit in the PrimaiyCouft at Manzese christened Civil Case No. 85 of 2003 in which the respondent successfully sued the appellant and the latter was ordered to pay Tslis. 2115001= for illegally parking his motor vehicle in' the former's plot. That judgment was pronounced on '24.06.2003; more than fifteen years back today1 Aggrieved, the appellant appealed to the District Court vide 'Civil 1 Appeal No. 97 of 2003 but the appeal was dismissed by Mtaki, DM on a successful preliminary objection to the effect that it was filed out of time The dismissal of the•ap.peaLb' the District Court irked the appellant. H Undeterred, h appe1ëdt'th ihCoUrt vide CivilAppeal No. I'71 - ot 2004 but, again, that appeal was struck out by Oriyo, 3. (as she then was; hereinafter referred to as simply .Oriyo, 3., for convenience) for being filed out of time. Civil Appeal• No. 171 of 2004 having been struck out by the High •Couirt the appellant filed in theHigh Court an application for extension of time to still challenge the:decision of the District Court which dismissed his appeal on account that it was time barred. That application; Civil Applatidn No. 200 of 2005 was refused by the High Court (Makarmba, .J.)::on the ground that the appellant did not show sufficient reason for granting the extension of time sought. Still undaunted, the appellant has 'H c-omeo this Court seeking to challenge the decision of Makaramba,.J. by 1 way.of an appeal on four grounds of grievance paraphrased as follows.: 2 :1 The learned Judgeerred in determining The application on the basis of extraneous matters from casEs which were not before p him to determine the appellant's application; 2:The learned • Judge erred iii c bndepsitions in a counter' affidavit lodged out of time; 1 ; 3. the learned Judge erred in refusing to strike out the 1 Ii: respondent's counter affidavit lodged out of time without leave; and 1 :4.;The learned Judge erred in determining the matter with a biased mind. At the hearing of the appeal before us on 10.10.2018 the appellant appeared in person, unrepresented. The respondent had the services of Mr. Barnaba Luguwa, learned counsel. • : In arguing the appeal, theappeHant adopted the :jftfl submissions duly prepared and lodged in the Court on 05 09 2011 by his advocate, Mr. Israel Magesa, who is now , no more; hence the appellant's fending for himself. In those written submissions, the appellant submits, in respect of the Mt ground, that the High €ourt erred in refErring to Civil Case No. 70 3 of 2003 of. the Primary CoUrt a't Manzese, Civil Appeal No. 59 of 2003 of • •:Kinondoni DistrictCèurt and (PC) Civil Appeal No. 168 of 2004 of the High Couftfiof Tanzania tosupport the averment by the respondent to the effect :tht thëØéll?ft h. .ed the duprc es oithëcOUtt The cases, he argued, were not part of the facts deposed in the affidavit but were deposed in the counter affidavit of the respondent which was filed out of time and without leave of the Court. I On the second ground, it is submitted that as Civil Case No. 70 of 2003 of the Primary Court at Manzese, Civil Appeal No. 59 of 2003 of Kinondoni District Court and (PC) Civil Appeal No. 168 of 2004 were to be found::in the counter affidavit which the High Court ruled out at p. 141 of the: record of appeal that it was filed out of time and without leave of the court, it was wrong for the 'learned judge to rely on those-cases to rule that the appellant was engaged in abuse of the court process. In so doing, he submitted, the High Coud denied the appellant's constitutional right of appealing to this Court thereby offending Article 13 (6) (a) of the Constitution of the United RepubbL of Tãnania, 1977 (hereinafter rferred to as the Constitution). 4 On the third ground; the appeHant submitted that the learned Judge erred in law and in fact-to refuse to strike out the counter affidavit of the i . respondent, which was filed out of time without leave, on the ground that s&ikéout and at the ....srne . ..thitobk"ihtO consideration matters contained in the said counter affidavit and written submissions made by counsel for the respondent, which were based on the said respondent's counter.. affidavit. On this premise, the appellant submitted that the High Court was legally wrong to fail to strike out the counter affidavit. The fourth ground of complaint is that Judge erred in law and in fact to iapproach the appellant's application with already biased mind. It is I argued that the fact that the Judge did not strike out the counter affidavit whchwas filed lout of time and without leave of the court, shows that the Judge was biased and as acesuIt he failed to appreciate that the appellant had shown good cause for the delay. The appellant submits further that thei appellant did not delay for a period of one year and forty two days as claimed by the Judge but for only thirty days whIch he used to wait for the ruling of the District Court and that of the High Court (Oriyo, 3.). .That the Judge was biased for faikwe to consider that when (PC) Civil Appeal No. 5 171of 2004was filed on 24.12.2004 the appellant had delayed for only thirteen days and that before striking out the appeal, Oriyo, 3. advised the appliant to apply forextension of time which hedid. i: The appellant submits further that without bias, the Judge would have:!considered the intended grounds of appeal, especially his failure to consider the issue whether there is really a delay to file an appeal when the appellant lodges the appeal in time and because of requirement of admission of a document thel. appeal delays in the office of the District Mgistrate, as happened with: the appeal of the appellant in the Kinodoni District Court. On the above grounds and on the authoriW of Felix Tumbo Kissima v. Tanzania Telecommunication Co. Ltd and Another [1997]1 ,TLR 57, the appellant prayed that this appeal be allowed as prayed. • ...: Responding,. Mr. Lu.guwa::submittedagainst the: grounds of appeal I generally to the effect that Makaramba, 3. rightly refused to extend time sought because there were no good reasons shown. He submitted That at p. 149 of the record of appeal; the High ourt found out that the appellant, - in a bid to frustrate the execution process, filed the appeal out of time I which was struck out by Oriyo, J. That the present application was filed More than three months after the appeal was struck out and no sufficient ••'as given. ëlantibh w -. Mr. Luguwa submitted further that at p. 151 of the record of appeal, I I the Judge, relying on Principal Secretary, Ministry of Defence and 'i National Services v. Durarn P. Valambhia [1992] TLR 387, was satisfied that there was no point of Jaw of sufficient importance which wduld require .consideration: bythis Court. Mr. •Luguwa thus urged us to dismiss the appeal with costs. The appellant, in rejOinder, had nothing useful to add. He was just i insitht that the Court should consider the reasons for delay as appearing in the written submissions. 1, Wehave considd.tbe:rival arguments of the paftiesto,tts.ppeal. : We shall determine the first - and second wounds of apal together because they are intertwined. Both are about the complaint to the effc:: that the Judge imported extraneous matters in refusing the prayers sought 7 Having considered the matter, we are satisfied that the two grounds .have noi rnerits We say so because the High Court Judge did not consider. the cäs tbmplained of to decide whether sufficient reasons were given for the the3udge did was narrating what he 'said was a chequered history of the case. It was a mere digression which did not occasion any injustice as it was not the basis of refusing the application. The two grounds are without merits. The third ground is about the refusal by the Judge to strike out or H ' e*pUnge the affidavit in reply. . .•As rightly put by the appellant, at p. 141 of the record of appeal, the High Court was hesitant to strike out the counter affidavit citing that the same being filed out of time and without leave of the court, there was nothing on' the court record to be struck out. This, as rightly argued by the appellant, was not legally correct. We agree with the appellant that having found 'that the counter affidavit was filed out of time, it was incumbent upon the' court to strike it off the record or simply expune it.. That was not done.. However, we have already stated above that the High Court did not use the facts deposed in the counter affidavit to dismiss the application. What was .. before Makaramba, 3. was an application to extend time to appeal against the decision of the District 8 CoUrt(Mtaki, OM) which was struck out by Oriyo, 1 and the reasons for the delay of about three. .monts after the decision of Oriyo, .1 was,.not explained away. Put differently, it was not the High Court's failure to strike: ff: or, expunge 't:cunteraffidavit which disallowed the application it' wàs:the court's view that the appellant failed to explain away the delay of ãbout:three months after the appeal was struck out by Oriyo, J. iThe fourth ground is about the complaint to the effect that the Judge .i: was i.biased and therefore did not appreciate the reasons for delay. The appellant has spent some considerable time in the written submissions to shoW that the Judge was biased and. that is the reason why he did not grantthe application. We have dispassionately gone through the record of I appeal; especially the affidavit sUpporting the application and the Ruling of Ii. Makatramba, 3. Having so done, we have not been able to find anywhere 1 suggesting any sense of bias on the part of the learned Judge. This is a vet serious allegation against the High Court Judge which, we respectfully think, has no backing of evidence as far as the record before us is concernéd. We; with respect; think this complaint by the appellant is unjustified and. was uncalled for. If anything, we think, the Judge properly appraised the law and facts deposed in the affidavit and arrived at a 9 correct conclusion.. Given..that the allegation is a serious one, we shaD 'dembhstrate herein below at the.. risk.ofrepeatihg some of what we have already stated above. - - -. • The appellant argued that the fact that the Judge did not strike out the counter affidavit which was filed out of time and without leave of the court is suggestive of the fact that he was biased. Respecifully, we are not prepared to go along with the appellant on this score. We think that condusion will be too general a statement and lacks any support of law abditiommon sense. As wehave already stated above, it was the Judge's view that as the counter affidavit was filed out of time and without seeking and obtaining the requisite-leave of the court, there was nothing on record I. to strike out. We have already alluded to above that the Judge erred in sucti'a stance but that by no means suggests that he was biased. The appellant also -shoulders the blame of bias upon the Judgefor his reference to the delay of , a period of one year and 6i& ià'days. He claims that he delayed for a period of only thirty days which he stats he used to wait for the ruling of the District court and that of the High Court (Oriyô, 'J.). We have considered this averrnent. We do not think the Judge 10 an justifiably be blamed for being biased for his reference to the period of delay complained of. Thatcomment is made at .. 147 of the record of appeal. The Judge counted the days from 11.11.2004,.the date when the dècislöñ sdUght to be appealed agast to theHih öU1tvVas pronounced and 30.12.2005, the date when the application for extension of time was lodged and found it to be one year and forty two days. This fact seems :1. unassailable. We agree, however, that in fit cases, normally, the time during which an appellant is diligently prosecuting his matter in court, is considered as good caUse for , the delay to grant the extension sought. .:However, failure to consider this would not amount to evidence of bias as the appellant would like us to hold. 1.:: The appellant also complains that the Judge was biased for failure to consider that when (PC) 'Civil Appeal No. 171 of 2004 was filed on :1 :24.12.2004 the appellant had delayed for "only thirteen days" and that before striking out the appeal, 0 nyc, 3. advised the appellant to apply for extension of time which he did. To this, we only wish to -state that the Judge was not legally supposed to consider the delay of "only fourteen days" before l9iing the appeaF struck out by Oriyo 1 3. Nither was be supposed to consider letalone being aware, that Oriyo, J. advised the 11 I appellant to file an application .for extension of time. We are surprised how the Judge would know that Orioyo, J. advised the parties:to file the application for extension Of time to challenge the ruling of the Distrit€ourt i while.. . such inforrnation"ismot deposed in the affidavit. Even ..if we ssume that Oriyo, 3. so advised, thesarne ought to have been so flied giving good cause for the delay both before and after such advice. Last for consideration Is the averment by the appellant to the effect I .:that without bias, the Judge. would have considered the intended grounds of appeal. The complainthere hinges on the failure by the Judge to konsider the issue whether there was really a delay to file an appeal when the appellant lodges the appeal in time and because of requirement of admission of a document the appeal delays in the office of the District Magistrate, as happened with the appeal of the appellant in the Kinondoni 1' District Court. With due respect to the appellant, the High Court I: .cnsidered this fact and was satisfied that there .was no point of sufficient importance for consideration .by the court. On this point, the Judge stated at. pp.151452: 12 • "In .essence the applicant is 'intimating to this ... . .. .;: . Court that where there are strong grounds in the ... . ......... ..........'. intended appeal then this Court should disregard the fact that the appeal was filed out oft/me and ought .pved' hearthe appeal on merits .................. ,. • . . despite the fact that it is time barred. I am at one • •. with the learned Counsel for the Respondent that the intended ground of appeal which the avolicant is convinced that it is stronq does not pass the test of "a point Of law of sufficient 3. importance" which was set down at page 402 by the Court of Appeal in the case of PRINCIPAL II' SECRETARY, MINISTRY OF DEFENC'E AND NATIONAL SERVICE VS DORAM P. VA LA MBHIA [1992] TLR 387. With due respect to the learned Counsel for the Applicant, loading an appeal out of time without sufficient or reasonable cause is contrary to law and the Applicant cannot be availed of the luxury of yet spending the court's time in vain to entertain and which is hopeIly tim6 ba.ned'11T the circumstances this Court finds that there is no point of law of suffident importance -ift the intended appeal constituting sufficient reason to enlarge the time within which to file the appeal." 13 With due respect to the appellant, we find nothing to impute bias in the foregoing appreciation. bf , the law as enundatd in the Valambhia case referred in the excerpt. A point of law of sufficient importance is a 'TroUrd'for e xtendin iIT d.,tht rOundiThJst be apparent OTi'tl1e' record. In Lyamuya Construction Co. Ltd. v. Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application • No 2'of 2010 (unreported), the Court had an occasion to extrapolate the 11 . imki ut of the Valambhia case (supra). The Court stated at pp. 8-9 of the typed script: "In VALA MBHIA 's case ('supra) this court held • that a point of law of importance such as the • .;• legality of the decision sought to be challenged I could constitute a suffident reason for extension of time. But in thatcase, the errors of law, were cleat on the face of the record. The I-I/gb Court there had issued a garnishee order against the • Governiea with out hearing the app//ca which was contrary to both the Government Froceedingsr, Rules, and rules of natural justke. $ince every party intending to appeal seeks to challenge a decision either on oints of law or fact, it cannot in my view, be said that in 14 VAL.4MBHIA 's case, the Court meant to draw a general rule that every applicant who demonstrate that his intended appeal raises' points of law should as of ri'ht, be granted me if he appll-~; fôone:The COUrt' there emphasized that such point of law, must be that "of suffident importance" and I would add that it must also be apparent on the face of the record, such as the question of jurisdiction; not: one that would be discovered by a long drawn argument or process/' What the Court stated in the foregoing excerpt is still good law to the present date. The error referred to by the appellant was not only one without sufficient importance but also one not apparent on the face of the record. In sum, we have read the chamber summons and the affidavit sUppoing it duly sworn by thaçpeUnt as they appea.r at pp. the record of appeal. In both documents, the appellant seeks to £halienge the decision of Mtaki, DM in Civil. Appeal No. 97 of 2003 pronounced on 11.11.2004. Theappellantdeposes in the affidavit why he could not1iie the appeal timely. The main reason is that he could not file an appeal in time 15 • . . because he was waiting for. :.the typed copies of proceedings, ruling and drawn order so as to filearneani'ngful memorandum of appeal. There is 2 :;no mention of when he got th documents to file his appeal on. 30.12.2004 which: was struck out....by Oriyo; J. However, defay of about three months; or 85 days to be particular, between the date of 1; striking out the appeal byOr,iyo, 3. to the date of filing Civil Application No. 200 of 2005 refused by Makaramba, 3. has no explanation at all. The I japplicant cannot take refuge in the phrases like "the delay was for just ithieen days" or "the delay.was for just thirty days". We have held time tiand again that in applications, of this nature each and every day of delay mustibe accounted for. In.Bushhl Hassan v. Latifa Lukio Mashayo, civil Application No. 3 of.2007 (unreported), for instance, we stated: De/ay, of even a single day, has to be accounted for otherwise there would be no point of having ru/es prescribing periods within which certain steps have to be ..taken ' 16 Un .the case at .hand,:the appellant did not bring enough explanation for theF delay upto the mOment. Oriyo,..J. struck out the appeal. He did not !bring any explanation for the period of delay covering between the date of .:. . strikjn.g out the app:IJy: Oriyo;'J:'and the date of filing Civil' Application ............................ .1 Not 200 of 2005 on 30.12.2005 which was refused by . Makaramba, J. 'H eMakäramba, J. was quite justified to refuse it. This appeal is seriously wanting in merits. It is accordingly dismissed with costs. Order accordingly. DATED at DAR ES SALAAM this 30th day of October, 2018. M. S. MBAROUK JUSTICE OF APPEAL. S. A. LILA JUSTICE OF APPEAL. J. C. M. MWAMBEGELE JUSTICE OF APPEAL Icertify that this is a true copy of the original. COURT OF APPEAL .17