awadhi idd kajass vs mayfair investment ltd 2017 tzca 288 19 june 2017

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 68/17 OF 2017 AWADHI IDD KAJASS...................................................................... APPLICANT

VERSUS MAYFAIR INVESTMENT L T D .........................................................RESPONDENT (Application for extension of time within which to file an application for the revision from the decision of the High Court of Tanzania at Dar es Salaam) (Nchimbi, J.) Date the 29th day of December, 2009 In Land Case No. 81 of 2009

RULING 13th & 19th June, 2017 MWARIJA. J.A.: By a notice of motion filed on 17/2/2017 the applicant, Awadhi Idd Kajass, brought this application seeking for two main orders:- (a) Extension of time to apply for revision of the decision and proceedings of the High Court of Tanzania (Land Division) (Nchimbi, J.) dated 29th December 2015 in Land Case No. 81 of 2009. i (b) Extension of time to apply for stay of execution of the decree in the said Land Case No. 81 of 2009. At the hearing for the application, the applicant was represented by Mr. Sylvester Shayo, learned counsel. Mr. Mafuru Mafuru, learned counsel appeared for the respondent. He informed the Court that the respondent did not intend to oppose the application. It is apparent that this is the reason why he has neither filed an affidavit in a reply nor a reply to the submission filed in support of the application. Mr. Shayo urged the Court to grant the two-fold application on the basis of what have been stated in the affidavit and the written submission. He submitted that the applicant intends to challenge the impugned decision in a revision on the grounds stated in the notice of motion including inter alia, to move the Court: ’to correct the illegality and procedural impropriety of failure to pronounce the judgment to the parties in the manner prescribed by the law..." 2 Other grounds are based on the contention that

there was a non-joinder of the Government as a necessary party and that the decree does not agree with the judgment because it does not contain the names of the proper parties. On the cause for delay in filing the intended applications for revision and stay of execution, the learned counsel argued that the applicant was prevented by a sufficient cause. The reason as stated by Mr. Shayo is that the applicant was not aware of the date on which the judgment was pronounced. According the learned counsel, at the conclusion of the hearing on 9/11/2015, the learned trial judge reserved his judgment and ordered that the same would be delivered at a later date to be notified to the parties. The judgment was however delivered by the Registrar on 29/11/2015 without a notice to the parties. Mr. Shayo submitted further that he became aware on 27/1/2017 that the judgment had been pronounced. That was after he had applied and obtained the leave of the High Court to inspect the record of the case. He then filed the present application. It is evident from the copy of the decree that the impugned judgement was delivered by the Deputy Registrar of the High Court, Land 3 Division on 29/12/2015 in the absence of the parties. It is also not disputed that the parties were not notified of the date of delivery of the judgment as ordered by the learned trial judge. The delay by the applicant in filing

the intended applications for revision and stay of execution is, for this reason, explainable. It was not until on 27/1/2017 that the applicant became aware that the judgment had been pronounced. He then filed this application on 18/4/2017. As submitted by Mr. Shayo, the applicant ought to have been notified of the date on which the judgment was to be pronounced. Without that notice, he could not be aware of the date of delivery of the judgment. His delay in filing the intended applications for revision and stay of execution was therefore, due to a sufficient cause. In the case of consolidated Mines Limited v Mbeya Cement Company, Civil Application MBY No. 5 of 1999, after hearing the application for leave to appeal, the High Court ordered that the ruling would be delivered on 20/8/1999. The pronouncement of the ruling was, however, adjourned to 27/8/1999 in the absence of the applicant. On that date, the ruling was delivered without a notice to the applicant. Aggrieved by the ruling, it intended to apply for leave to appeal but found itself out of time because it became aware of the decision when the time had already lapsed. The Court held that the trial court had an obligation to notify the applicant of the new date of delivering the ruling. It found further that since the applicant could not know of the future date after adjournment unless it was so notified, it would

not begrudge the extension sought. The position applies in the application at hand. On the basis of the foregoing, this application, which has not been objected by the respondent, is hereby granted. The applicant is granted extension of time to file an application for revision and stay of execution of the decree as prayed. The same to be filed within fourteen (14) days from the date of delivery of this ruling. Each party shall bear its own costs. DATED at DAR ES SALAAM this 15th day of June 2017. A. G. MWARD A

JUSTICE OF APPPEAL I certify that this is a true copy of the original.

DEPUTY REGISTRAR

COURT OF APPEAL 5