20150211 TZCA Bukoba

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CIVIL APPLICATION NO. 4 OF 2014 .SEBASTIAN .N DAU LA ....., ........................................................-. ............... A-P-PLICANT VERSUS GRACE RWAMAFA (Legal Personal Representative of Joshwa Rwamafa) ••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) {Mr. Nyamasaqara- PRM with Extended Jurisdiction) dated the 6 th day of February, 1997 in Civil Appeal No. 72 of 1996 RULING 11 th & 1ith February, 2015. JUMA, J.A.: Before me is a notice of motion which the applicant made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). He is seeking an order for extension of time so that he may serve the respondent with a Notice of Appeal and Memorandum of Appeal. The applicant filed his notice of appeal to manifest his grievance with a decree dated 6th February, 1997 1 ... ' passed by Mr. E.J. Nyamasagara, a Principal Resident Magistrate on Extended Jurisdiction, in High Court (PC) Civil Appeal No. 72 of 1996. The applicant has provided two grounds in his motion to explain why he failed to serve the respondent with a copy of the notice of appeal within fourteen days as was then expected of him under Rule 79 (1) of the Court of Appeal Rules, 1979 (old Rules); which is now Rule 84 (1) of the Rules. (a) The applicant as layman did not serve the Notice of Appeal and Memorandum of Appeal to challenge the Judgment delivered by EJ. Nyamasagara PRM Extended Jurisdiction on 6/2/1997 for being entered without jurisdiction to do so. (b) That the whole time the applicant was applying the same order in the High Court Civil Application No. 18 of 2008 which was withdrawn for want ofjurisdiction. These two grounds were further expounded in the supporting affidavit which Mr. Mathias Rweyemamu his learned advocate, swore in support of the application. It is averred in the affidavit that the applicant 2 through Mr. S.L. Katabalwa, his learned counsel had manifested his intention to appeal to this Court by filing a Notice of Appeal on 18th February, 1997. However, soon thereafter, Mr. Katabalwa terminated his legal services to the applicant without so much as serving the same on the respondent. Meanwhile on 21 st January, 1998 the applicant went ahead and filed in this Court a notice of motion for stay of execution of the decree of the High Court. It was further averred that at all that and this material time, the applicant has been pursuing applications, like HC Civil Application No. 18 of 2008 before it was withdrawn on 14/4/2014 on a request of Mr. Mathias Rweyemamu. The respondent, through Josephat Sebastian Rweyemamu learned advocate, filed an affidavit in reply to oppose the application. He averred that the applicant should not be granted an extension of time to serve notice of appeal and memorandum of appeal because he has not even made any efforts to obtain from the High Court leave and a certificate to show that a point of law is involved in his pending appeal. The learned advocate also pointed out that although the dispute originated from Bugene Primary Court (Civil Case No. 42 of 1994) and had also passed through the District Court of Karagwe (Civil Appeal No. 32 of 1995), the 3 applicant has failed to include in his application, copies of the judgments of the primary and district courts. At the hearing of this application, Mr. Josephat Rweyemamu appeared for the respondent. He rose to inform the Court of the presence of Grace Rwamafa, the legal representative of the deceased respondent. She had been appointed the administrator of the estate of the deceased way back on 27th February, 2002. The learned Advocate referred me to BK Civil Application No. 1 of 1998 wherein this same Court had invoked Rule 54 (2) of the old Rules to record Grace Rwamafa as a party in place of the deceased respondent. Mr. Mathias Rweyemamu who appeared for the applicant urged me to grant the application on strength of what is averred in the supporting affidavit. According to the learned advocate, the service of the Notice of Appeal on the respondent is important insofar as it will open the way for the applicant to be heard by the Court on his appeal. Secondly, there is an important jurisdictional point of law involving Ward Tribunal and Primary court which only Court of Appeal can ultimately determine. 4 In his reply, Mr. Josephat Rweyemamu reiterated his opposition to the proposed extension of time. He referred me back to BK Civil Application No. 1 of 1998 where this Court had advised the applicant to first comply with the provisions of section 5 (2) (c) of the Appellate Jurisdiction Act if he wants to be heard by the Court on an appeal over the alleged jurisdictional points of law. The learned advocate added that the applicant has not lived up to the Court's advice because he has not even sought a certificate of the High Court on existence of points of law worth the attention of this Court. In his rejoinder, Mr. Mathias Rweyemamu was quick to dispute the contention that the applicant has not been pursuing a certificate of the High Court on points of law. He referred to the Civil Application No. 18 of 2008 which the applicant had filed in the High Court to seek that very certificate on points of law but had to withdraw it after realizing that the applicant had mixed up an application for leave (falling under High Court's jurisdiction) together with an application to extend time to serve notice of appeal on the respondent (falling under the jurisdiction of the Court). From submissions of the two learned advocates, I must begin from the legal premise provided by Rule 10 governing the discretion guiding the 5 Court when determining applications for extension of time on ''good cause'~ The Rule provides: 10. The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal, for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. The question what the applicant has been doing since becoming aware of the fact that he did not serve the respondent with the Notice of Appeal, is one of the questions that shall guide my determination of the existence or otherwise, of good cause in the present application. This Court asked that similar question in Royal Insurance Tanzania Limited vs. Kiwengwa Strand Hotel Limited, Civil Application No. 116 of 2008 (unreported) while considering an application for extension of time under Rule 8 of the Court of Appeal Rules, 1979 (old Rules) where an applicant therein was required to show "sufficient reason." The Court had stated: 6 ''It is trite law that an applicant before the Court must satisfy the Court that since becoming aware of the fact that he is out of time, act very expeditiously and that the application has been brought in good faith. " In the second paragraph of the supporting affidavit, it is averred that the applicant had relied upon the services of S.L. Katabalwa who prepared his Notice of Appeal, proceeded to file the same but terminated his services soon thereafter without serving the same on the respondent. The applicant has however not explained when specifically Mr. Katabalwa terminated his legal services, and when the applicant as a layman he claims to be, became aware that the Rules required intending appellants to serve respondents with appropriate notice of appeal within fourteen days after filing the same. The applicant has not shown when he obtained the legal services of his current counsel, Mr. Mathias Rweyemamu and why this learned advocate did not apply for extension of time earlier than 15th August, 2014 when this application was filed. 7 - I The position of this Court has consistently been to the effect that in an application for extension of time, the applicant has to account for every day of the delay: see- Bariki Israel vs. The Republic, Criminal Application No. 4 of 2011 (unreported). The need to account each of the days of delays becomes even more important where matters subject of appeal like the present one is, was decided eighteen years ago on _____ (5/02/199~. The applicant has suggested in his supporting affidavit that he has all along been pursuing his case both in the High Court, and in this Court. But, on a closer look, there are some gaps which the applicant has not accounted for. For instance, he has not given any account of four months between 11th April 2014, when he withdrew his HC Civil Application No. 18 of 2008 and 15th August, 2014, when the applicant filed this present application seeking an extension of time. This interlude begs the question why the applicant did not file his motion for extension of time at very least during this period. As a result, Mr. Josephat Sebastian Rweyemamu is entitled as he did, to contend that after withdrawing his Civil Application No. 18 of 2008 from the High Court, there is nothing before the Court to 8 . ... , show that the applicant has gone back to the High Court to seek the certification of existence of points of law to be heard by this Court. For the foregoing reasons, the application has failed to advance good cause to justify an extension of time. Application is dismissed. The respondent is awarded costs. DATED at BUKOBA this 11th day of February, 2015. I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. EGISTRAR OURT OF APPEAL 9