20140219 TZCA Dar es Salaam

IN THE COURT OF A~PEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 150 OF 2011 BANK OF TANZANIA •••••.•.•••.....•............•.••.......•..••••..• APPLICANT VERSUS SAID A. MARINDA & 30 OTHERS ......•.........•••..•••... ~.RESPONDENT (Application For extension of time within which to file Notice of Appeal · out of time from the decision of the High Court of· Tanzania at Dar es Salaam) ( Bubeshi, J.) Dated 10th day of October, 2003 In Misc. Civil Cause No. 67 of 2002 RULING th 19 June 2013 & 3 rd March 2014 ... -·· .. . - ..... -- ·-. -·- --- .. MANDIA,J.A. By Notice of Motion lodged in this Court on 15 th November, 2011, the applicant is seeking this Court to allow him to file a Notice of Appeal out of time. He gives four grounds for seeking the prayers above - named, namely:- ·1) That there are serious questions of law and fact which needs to be resolved by this court. 2) That at all material times the applicant has been in the corridors of justice pursuing various remedies to safeguard their interests 1 i I .l j' ' .I . I 3) That the delay occasioned is not inordinate 4) That the delay has not been entirely occasioned by the applicant. In ground one, the applicant itemizes the "serious questions of law and fact' as (i) that the trial Court erred in law and fact in holding that the joint Agreement/Redundancy Agreement of 25/9/1993 was a Voluntary Agreementregistrable within _the meaning of _Section_39 of the_ security _of ___________ _ Employment Act, Cap 60 R.E. 2002; . (ii) That the trial Court erred in law .and in fact in holding that a voluntary Agreement becomes null and void of not registered pursuant to section 39 of the security of Employment Act, Cap 60 R.E. 2002; (iii) That the trial Court erred in law and in fact in holding that there was no _,, .. _____ -·- -- . consuifotfon.prior fo·reaunaaricy exercise pursuifriCfo sedior1·6(1J{gfor-·-·--· . ·-·" the security of Employment ACT, Cap 60 R.E. 2002; (iv) That the trial Court erred in law and in fact in not considering the validity or enforceability. of voluntary Agreement was not an issue before the Minister. An atf1dav1t deponed by one MUSTAFA KAMBONA ISMAIL, the Litigation Manager of the Bank of Tanzania, was filed in support of the Notice of Motion. 2 II, '1 iJ The affidavit contains twenty (20) paragraphs most of which give a chronological account of the dispute between the applicant from the High Court to th€ Court of Appeal. In brief the affidavit in support of the Notice of Motion narrates the events from 24/10/2007 when the applicant fifed in the High Court an application for leave to file a Notice of Appeal in respect of the decision of the High Court dated 10th October, ··-·--···-·- ...... 2003. The .. -·········· -- --·-. ·-·-···· ---·- .. -·-· affidavit goes further to state that on 30/4f2009 .the _______________ ·--------------- ·--·------ ·--····----····-·····-·-·--·-·----·-- ---- - -· . . High Court (Mruke, J) delivered a ruling in which it refused to grant the leave sought. On 13/5/2009 the applicant filed a Notice of Appeal against the decision - to refuse leave. It appears however that later the applicant had second thoughts and appiied, on 14/7/2011, to_ have the Notice withdrawn. This application was granted on 19/7/2011 by the Hon. The Chief Justice. In the meantime the - - -- --··ai5f5ffcant ,ippHed for· leave fo _appea-c··ahd -the· High couri(Shangwa, J.) granted this application on 27/7/2010 .. On 30/7/2010 the applicant applied for certified copy of proceedings, ruling order etc.· The copy of ruling of the proceedings before Shangwa, J. was supplied on 9/9/2010 while a copy of the proceedings was supplied on 21/9/2010. On 23/9/2010 the applicant lodged the Notice of_ Motion for extension of time. 3 ' .. The respondent has lodged a counter - affidavit sworn by SAMSON JERE MIA MAGOTI in which the deponent blames the applicant for dilat-oriness. The respondent averred that after the ruling of Bubeshi, J. dated 10th October, 2003 the applicant filed Civil Appeal -No. 42 of 2004 which was subsequently struck out by the Court of Appeal for incompetence because· it contained a defective drawn order. The Court of Appeal struck out the appeal on 10/8/2007, the applicant waited until 25 th April, 2008; eight months later, when he filed an · application ·for extension of time. This is the application which was refused by Hon. Mruke, J. -When the application came up for hearing MR. Senen Mponda, learned advocate, appeared for the applicant while Mr. Barnabas Lugua learned advocate, appeared for the respondent. Mr. Barnabas Luguwa had filed a notice of;_pr~liminary · objection containing two points. of objection which he later withdrew - and this allowed the Court to take arguments of. counsel in _the applit:ation. Both parties to the application are in agreement that in 10th October, 2003, the High Court of Tanzania (A.G. Bubeshi, K.K. Oriya and N.M. Mwaikr ,gile) JJA rendered a decisio1, if, Misc. C1v1I Cause no. 68 of 2002 4 .. I whereby the court granted the appliltion for certiorari and Mandamus and I quashed the decision of the Minister for Labour and Youth Development as well as the award of the Industrial (ourt in inquiry No. 3 of 1995. The I . I Bank of Tanzania, who are the applicknts in the present applicants, where 'I the third respondent in Misc. Civil ca6se No. 67 of 2002. They pref,erred I . . an appeal to this court, Civil Appeal No. 42 of 2004, which was struck out in 10th August, 2007 for being inco1petent for having incorporated a . I .. · · · · -- . ---defective -dra-vir1 order~ -After the -striking out of the appeal, the present---------------- ' I ' applicant waited for eight months before they filed an application for I I I extension of. time within which to file an appeal. They filed their application in 25 th April, 2008 which Jas determined in 13th May, 2009. The High Court found that there was nl good cause for the delay in filing ·tne Tiitehdecr appear aria dismissed th-e applicaffori· for extension of time. - . j The applicant then did two things at thei5ame time. First in the same day 13 th may, 2009 he lodged a Notice of Appear against the decision of the · th I . . High Court (Mruke, J.) dated 13 may, '2009 and secondly he lodged an application for leave to appeal against the decision of the High Court I refusing them extension of time. The application for leave to appeal was I determined by Hon. A. Shangwa, J and bn 27/7/2010 the applicant was I 5 · granted /eave to appeal to the Court of Appeal. Alter securing the leave to file the appeal~ the applicant did not file the appeal as intended. Instead · ·he filed a .N0tice in the Court of Appeal to have the Notice of Appeal filed against the decision of the High Court dated 13 th may, 2009 marked with drawn. The Notice of withdrawal was lodged on 14th July, 2011 and on 19th October; 2011 the Notice was marked withdrawn by the Hon. the Chief Justice. Apart from filing the notice of withdrawal of his intended appeal, the applicant also filed in the Court of Appeal the present application for extension of time within which to file an appeal. Both parties to this application are in agreement that the applicant is I• out of time in lodging a notice of a,_pp~al against the .order of.the High-- : __·.;. ·::· :· __ :-·. -.I -.- Court refusing the extension of time. What they disagree about is the . I I' I effect of the delay. The applicant argues the delay is justified because f . ! during the period of delay he was in· the _corridors of justice. seeking i . i · alternative redress. In the other hand, the respondent maintains that the I ! . { i delay is not justified and, since it is admitted that there was delay, the ; .I ! applicatiao should be dismissed. 6 .·• . ' One point stands out the above outline. This is the fact that bot'n the I application before Hon. Mruke, J which was dismissed on 13 th may, 2009 ' and the present application before this Court all seek extension of time I within. which to file a notice of appeal I against the decision of the High Court delivered on 10th October, 200$. In a way therefore, the pr,esent 1 appellation is a second bite to the application determined in 13 th may, 2009. The Notice of· Motion which actuated the present application was lodged on 14tfi November; "ioii-two ahd a half years after the High c~~rt- . ' ruled the applicant to be out of time for nine months. To account for the · delay Mr. Senen Mponda for the applicant. contended that there were :. mistakes made and these were excusable because the mistakes occurred I ' I because of lack of knowledge of the layv, and whenever they realized the · · -- ·mista-r<:e ·they-cm--rected··:;c ·. He· drd···nof point··· our·lm~·--rn~ist~YRes~- bur the···· · • I • ' ' record speaks for itself. The applicant 1files a Notice of Appeal and then withdrew it before the Chief Justice. f:1e also lodged an application for leave which was determined by Hon. Shangwa, J who g ranted him leave but he never pursued the matter after $ecuring leave. Clearly what Mr. ' Mponda was doing was filing wrong applications and then withdrawing or abandoning them. In doing so he cannot be said to be "inthe corridors of 7 • justice seeking alternative redress" as he claims. What comes out of his efforts is an astonishing lack of knowledge of procedural law which cannot be an excuse for delay.· I am persuaded by the argument of Mr. Barnabas Luguwa, acting for the respondent that the authority of TANZANIA PORT AUTHORITY Versus MS.· PEMBE FLOUR MILLS LTD, Civil Application No. 49 of 209 (unreported} is relevant in this case where it holds that ·· '. J.gnorance of the Jaw or 1nistake of ·Counsel cannot constitute. sufficient cause for delay. Accordingly I nnatnaf-iio--sufficienr·cause. has been established to justify the delay in filing the notice of appeal. The . application is found to be lacking in merit and is accordingly dismissed with costs. DATED at DAR ES SALAAM this 19th day of February, 2014. W.S. MANDIA JUSTICE OF APPEAL I certify that this is a frue copy of the original. . ---- KWIZU .. · ··•'. ~ ___ /_ - .< ' ~~RAR . COURT OF APPEAL 8