attorney general vs said juma muslim shekimweri 1997 tzca 81 24 october 1997

in the c o u k t o f ok Tanzania AT PAR ES £A.Lr\/-r. C I V I L A P P L I C A T I O N :'C- 45 OV 1937 In the Matter of ?.n Ir.i termed A ppe al 3£TW£E--i ATTORNEY GENERAL. . . . . . . . . . . A.; T LICANT AND SAID JUMA MUSLIM SHEKIMV/ERI . . . . * RESPONDENT (Application for Extension of tine to file his Memorandum of Appeal from the decision of the High Court of Tanzania at 0 1Salaam) (Samatte, J,K. ) dated the 1st day of November, l£9C in Civil Case No. 3 of 1996 R U L I N G LUBUVa , J . A . : In thi s application, the applicant, the honour«b;e th« Attorney General is applying for an or-ier thot time be c a t ended ir. o r d e r to e n a b l e the a p p l i c a n t to file the a p p e a l . 'inc: application is supported by ar; a f f i d a v i t dot---' ' : to : y Harung Songcro Senior State Attorney. I t: p;srts, the J-oilcwir’rj p a r a g r a p h s o f the affidavit prov ide: 5. That on 15 January, 19S;7 . tj.n ;:h Court supplied the applicant with the; ruling of the court and w2 thout the proceedings, 6, That in the absence of proceedings the applicant have (^ic) failed to prepare memorandum of sop oat withir. the prescribe*d time of 60 day? as provided by ruld 8 3 of the Co;;~t of Appeal rules. 7i That the applicsnt have ( eic ; requested from the High Court tor copies of proceedings for the purpose of preparing hid memorandum of appeal in terms of S. 83 of appeal rules. 8. That b y the m o m e n t A p p l i c a n t secure copy of proceedings and prepare- a memorandum of appeal the time ior filing an appeal will have elapsed* 9. That for the interest of justice Applicant prays the honourable court grant extension of time to file an appeal. At the hearing of this application Mr, songoro learned Senior State Attorney appeared for the applicant. ->-n further elaboration of what is deposed in the affidavit, he briefly stated the background that gave rise to the matter. ;hat ir. Misc. Civil Cause No. 3 of 1996, the President1s decision to retiro an oxficcr in the Immigration Department in the public interest was quashed by the High Court on 1,11.1996 (Samatta, J.K. as ho then v;5 s) . As the applicant wee dissatisfied with thp.t decision notice of intention to appeal was filed on 30,11- ISO'i. Oh 12.2.19'-?'' by a letter addressed to the Registrar a copy of proceedings and ruling was requested but the letter was not copies to the respondent in the proceedings before the High Court. That the time schedule required under the rules for lodging the memorandum o£ appeal has expired and hence the need for the extension ox time. The reason for the delay in filing the memorandum cf appeal Mr. Songoro stated, was that the applicant was of the impression that the notice of intention to appeal was sufficient to move the Registrar to furnish the copy of proceedings and ruling. Ac the intended a;-pe a 1 ir.volvsc <: m^ttor of public importance touching on the powers of the I-re r i<1o r.t .- Kr. Sonooro urged the Court to exercise- its discretionary rower® in c yteno.i nv: the time. For the respondc-nt, Nassoro, 1 earns-’ Counsel strongly opposed the application. He stated that fro::- Lhe historic?;} background of the matter it steras clear that the- ofrice or tm: Honourable the Attorney General, the applicant h.-4S not bci-;n serious at all in the handling of this matter. For instance, he said, since the ruling in this matter was handed down on l.; VI. 159<-, the notice of intention to appeal was filed on the last day and the respondent was served with the notice in September, 19S7. Furthermore, Mr. Nassoro contended, as the letter to the Registrar applying for copy of proceedings in the High Court was not curie- ? to the respondent, the applicant c=n not avp.il h.lrm;c-lf of the proviso under rule 83 (i) regarding the computation of time- vdthir. which to institute the appeal* Mr, Nassoro v;jrt further in his submission that the matter does rot warrant the.- v.y.&rci of thi- C o urt1 s powers under rule 8 because ihe hardline thu m 3 t t*rr hy the applicant manifests nothing else other thiir. ::httfcr '-"wg *igejvro and inaction on the part of the o-fice of the hcinoureblc the Attorney General. If the rr.atter v.;ss considered to be of such gre = t public importance, its handling does not reflect a corresponding seriousness on the part of the applicant, urged Mr. Kassoro, Me pressed for the dismissal of the application. 1 have given anxious end close consideration to these submissions* From the affidavits! '"^position ar;d tho oral submissions, I agree with Mr. Nassoro, Itciiierf C o u n s e l that the handling of this metter by the Office of the- ivsnouraSIo Attorney General, the applicant, mgnifests cl.-.rir.c st ts o:" nc-nli u<.-nc<: ar.d inaction. This is evident from the followin'1 : ;ictr: fi rstly the notice of intention tc appeal was file- on thfe last but on*' day in terms of the rules i.e. 13.11.1996; scjcor^ly, thr- notice was served on the respondent as late as September, 1997; thirdly, the letter to the Registrar applying for copy of proceedings and ruling Was not copied to the respondent and fourthly, the feet that the applicant claims to have been convinced that t'ne notice of appeal was sufficient to enable the Registrar to furnish a copy of the proceedings and ruling. It incomphensible that the office of the Honourable the Attorney General manned by rr.ar.y Law Officers would fall into such trivial mistakes and omissions in watters of this kind. Such manner of handling, as correctly submitted by Mr. N’sssoro, learned Counsel is not in accord with -he sericusr.css that tor. Songoro, learned Senior State Attorney yrces this Court to believe the applicant attaches to this 'natter. '.-'hat is more, it must be rr.ade d e a r frora the outset that as the letter to the Registrar of the High Court applying for a copy of t'r.a proceedings and ruling was not copied to the respondent, l.h;- applicant cannot benefit from the exclusion of time taken in computing the time within which the appeal is to be instituted under the proviso to rule 83 (l) of the Court's Rul^s, 197S. In these circumstances, the question to hr;- nosed is whether suf ficiert reason has been advanced to warrant the ten s i o : time as sought by the applicant. On this, I have no difficulty in answering that the reasons as advanced by i-ir. Songoro, learned Senior State Attorney for the delay are, with respect, net sufficient. It is common knowledge, indeed eie-'entsry that the .. ./ 5 requirement of the rules portalnih^ to the r»g should stringently be complied with by each and c-very : c:i t’. "LrC *--;f the office of applicant} the Honourable- ths Attvrnty twnersj. incredible that an office which h?ss handled cc? rany cose 2 of this kind for years would now seek to convince the Court that it -.ves. believed in that office that it was not necesiisry to spply a copy of the proceedings and ruling after filing the notice of appeal. Such being the position as reggrrts the rcijisons advanced, I have also gone further to corsider whether there are special or peculiar circumstances that would justify the extension of time. As already pointed out, Mr. Songoro, learned Senior State Attornc- is firmly of the view that the matter is of such crest public importance as to warrant the extension of tirr.e. i-laving had e curscrary glance through the ruling of the High C o urt, 1 am ir agreement with Mr. Scngoro that the case raiEi’Si such peculiar and special issues of lew and constitutional power? oi the President, as to warrant extension of time. These issue:;, I am satisfied, are worth the con si deration of the: Court of Ar-ren i end. th&v. it i ?. in the interest of justice to grant the appZic:?ti;>r-. Accordingly, it is ordered that the time f-:r the filing of the appeal in this Court is extended until such tirr.e that a cow/ of the proceedings is received. It is further ordered that the appeal is to be filed ten { 1 0 ) days from the date <*£ ruceipt of the copy of proceedings. Application allowed- Costs in tbe­ cause. «■( \ %• \ \ j D -Z -[ LU BU V;„ > • ■i k~ik- '1■ JUSTICE OF API'SAL I certify stKat thx.s- is a true; copy of tr;G o r i g i n a l . iyf ( M.S. 'SriAN^ALI ) 1 DEPUTY REGISTRAR